12 May 2025
The legal team for Eastern Cape Judge President Selby Mbenenge at a Judicial Conduct Tribunal on Monday. Photo: Office of the Chief Justice
Crucial CCTV footage from the day on which Eastern Cape Judge President Selby Mbenenge allegedly asked court secretary Andiswa Mengo for oral sex has gone missing.
The tribunal is probing allegations of sexual harassment against Mbenenge.
On Monday, the tribunal watched video footage showing a passageway leading to Mbenenge’s chambers on 14 November 2022, which was introduced into evidence by Prabagaran “Neil” Naidoo, the director of facilities and security at the Office of the Chief Justice.
But it showed very little. Crucially, Naidoo was unable to explain what had happened to the footage from 15 November, the day Mengo claims Mbenenge called her into his office, pointed to his “bulging trousers” and said “look what effect you have on me.”
Mengo previously testified that he had asked her for oral sex, and she ran out of his office.
Naidoo testified on Monday that he had been contacted by the Mthatha court manager sometime in November or December 2022. He was told that “a senior judge” had asked to see the CCTV footage and had been allowed to do so by the control room operator.
Naidoo said he was unaware of Mengo’s sexual harassment claims — or that she would later lodge a formal complaint with the Office of the Chief Justice. But “just in case” it was needed in the future, Naidoo instructed that the footage be downloaded onto a computer hard drive before it is overwritten.
It was only in October 2023, almost a year later, that he instructed that it be transferred to a memory stick and couriered to his office. The memory stick contained footage from 14 and 16 November, but the footage from 15 November was missing.
Questioned by Nasreen Rajah-Budlender, the advocate acting for Mengo, about what had happened to the 15 November footage, Naidoo said: “I can’t say.”
Rajah-Budlender said it was on record that the judge who had viewed the footage was Judge Bantuboke Tokota, who had made a statement about it.
“Judge Tokota says he viewed footage from 14 and 15 November. He said there was nothing worth mentioning about the 14th because it had nothing to do with the rumours regarding the 15th. On the 15th, he saw Mbenenge arrive and leave chambers with his bag. He said there was no sign of Mengo entering his chambers. But we have not seen that today,” she said.
Naidoo said that even if footage of the passage way did not show Mengo going towards Mbenenge’s chambers, there would have had to be another door in that area for security reasons.
Naidoo also said it was possible to “tamper” with footage once it was downloaded from the main system onto a computer hard drive or a memory stick.
Judge Tokota had not followed protocol in requesting access to the footage through the court manager, said Naidoo.
All such requests, even from SAPS, had to be made via his office on a specific form.
Later, it was decided that the tribunal will rule on Tuesday morning whether gender violence expert Dr Lisa Vetten can testify.
Mbenenge does not want Dr Lisa Vetten to give evidence. This, advocate Muzi Sikhakhane told the panel yesterday, was because it would result in the hearing dragging on, which would prejudice his client “who is ready to give evidence tomorrow [Tuesday]”.
He also submitted that it was not in the interests of justice and that the panel could decide on the issue based on the evidence presented already.
“One of the things we are told is that this is the first time in South African history that a tribunal has been called upon to consider a complaint of sexual harassment against a sitting judge. But this is a matter of evidence,” he said.
The tribunal was quite capable of drawing inferences from the evidence and it made no difference that the respondent was a judge.
“There are unequal power plays at every workplace,” he said.
He said that if Vetten were to testify, the defence team would also have to find and call their own expert witnesses.
The issue arose when evidence leader Salome Scheepers said she had no more witnesses to call but asked for an indulgence to call Vetten.
She said she had tried to identify an expert who had knowledge of the relevant Xhosa culture, but she could not find anyone.
Vetten had agreed to assist, but the Office of the Chief Justice had only signed off on payment for her last week. While Vetten had provided a summary, she needed time to go through all the evidence given so far and amend it.
It would then have to be provided to the parties to prepare for her testimony.
Rajah-Budlender said Mengo would also be prejudiced by any delay and “we also have questions which we need to prepare for”.
However, Rajah-Budlender argued, the panel needed to hear Vetten’s evidence because it would provide context.
She said the tribunal, which was scheduled to sit for the rest of this week, had set aside time at the end of June. Vetten’s evidence could be heard then.
Sikhakhane indicated that he would consult with Mbenenge to see if he was “comfortable” to start giving evidence on Tuesday whichever way the panel ruled on the issue.